Grounds for Impeachment

Matthew Rothschild, The Progressive

March 8, 2006

George W. Bush and his Administration have been so brazen in violating the law and asserting monarchical powers that we, as American citizens, must use the tool that the Constitution provides to reassert our rights, to reset the system of checks and balances, and to reestablish our democracy. That tool is impeachment.

Article II, Section 4, states: "The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Notice that the Vice President is specifically mentioned. So while we’re advocating the impeachment of George W. Bush, let’s not stop there. Impeach Dick Cheney, too. For Cheney has been in on every illegal act that Bush has committed.

And notice the phrase "other high crimes and misdemeanors." At the Constitutional Convention, the drafters had originally restricted impeachment to "treason" and "bribery." But George Mason, one of the influential delegates, found those terms insufficient, according to Articles of Impeachment Against George W. Bush, a new and highly informative book by the Center for Constitutional Rights. Those terms "will not reach many great and dangerous offenses," Mason said, including "attempts to subvert the Constitution." After some wrangling over wording, the founders agreed to James Madison’s phrase "high crimes and misdemeanors."

And that is exactly what George W. Bush has been committing: He’s been subverting our Constitution, and he has repeatedly violated his oath of office to "faithfully execute" his duties and to "preserve, protect, and defend the Constitution of the United States."

He has done so in four key areas: in the Iraq War, in detentions here at home and abroad, in the torture scandal, and in the NSA warrantless spying program.

First, Iraq. Bush’s invasion was a war of aggression, prohibited by the U.N. Charter. Article 2 of that Charter says, "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." Article 51 provides an exception for "self-defense" but only "if an armed attack" has already occurred against that state.

Saddam Hussein had not attacked the United States.

International law also provides an exception for imminence: if you’re just about to be attacked.

Saddam Hussein was not about to attack the United States.

By waging this aggressive war, Bush was violating the U.N. Charter, as Kofi Annan himself has acknowledged.

And by violating the U.N. Charter, Bush was violating Article VI of the Constitution, which says that treaties are "the supreme law of the land."

But even beyond this, the way that Bush bamboozled the country into war is itself an impeachable offense. There can hardly be a more grave act imaginable than to dupe a democracy into going to war, but that is what Bush has done, as the Downing Street Memo clearly indicates.

On July 20, 2002, eight months before Bush launched the war, Richard Dearlove, head of British Intelligence, met with George Tenet, director of the CIA. After that meeting, Dearlove reported back that Bush was intent on war.

His findings were reflected in the July 23, 2002, memo to Prime Minister Tony Blair, which said: "Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy."

To fix the intelligence and the facts is to engage in a fraud against the U.S. government and the American public, and that’s exactly what the top officials of the Bush Administration proceeded to do. Bush, Cheney, Donald Rumsfeld, Condoleezza Rice, and Colin Powell issued 237 statements that were "misleading at the time they were made," according to "Iraq on the Record," a report by Representative Henry Waxman of California and the Democratic staff of the House Committee on Government Reform.

Here are two of the biggest whoppers.

Just days before Bush ignited the war, Cheney went on Meet the Press to discuss the alleged threat posed by Saddam Hussein. Cheney said: "We believe he has, in fact, reconstituted nuclear weapons."

And in Bush’s address to the nation on March 17, 2003, he said there was "no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised."

Remember, this was after the U.N. weapons inspectors had been scouring Iraq for evidence of those weapons and had found nothing.In fact, Mohammed ElBaradei, the head of the International Atomic Energy Agency who received the Nobel Peace Prize last year, told the Security Council weeks before the remarks of Cheney and Bush that not only did Saddam not have any nuclear weapons, there was no evidence that he had even reconstituted his nuclear weapons program.

Bush and Cheney were engaging in "a conspiracy to commit fraud," as Lewis Lapham points out in his pathbreaking essay, "The Case for Impeachment," in the March issue of Harper’s Magazine. Lapham notes that the Supreme Court in Hammerschmidt v. United States said someone engages in a conspiracy to commit fraud against the government when that person obstructs lawful government functions "by deceit, craft, or trickery, or at least by means that are dishonest" and when its "legitimate official action and purpose shall be defeated by misrepresentation, chicane, or other overreaching of those charged with carrying out the government intention."

That fits Bush and Cheney to a T.

The second ground for impeachment is Bush’s illegal detentions, in the United States and abroad. After 9/11, during the Ashcroft Raids, the Bush Administration rounded up 1,200 Arabs and Muslims and held them for months without charge. Many were held in solitary confinement; some were beaten and abused.

This not only violated the rights of the detainees. It also "grossly violated basic separation of powers principles by denying the judiciary any opportunity to review thousands of detentions," the center writes in its book on impeachment.

Then there’s Yaser Hamdi and Jose Padilla, the two U.S. citizens seized by the Bush Administration, denied their due process rights, denied access to their attorneys, and kept in military brigs for more than two years, mostly in solitary confinement. In a disgusting rationale, the Bush Administration told the Supreme Court that it was holding them for "humanitarian" purposes.

These are U.S. citizens, who were denied their most basic rights under the Fifth, Sixth, and Fourteenth Amendments by orders of the President of the United States. The Supreme Court eventually ruled in the Hamdi case that a "state of war is not a blank check for the President when it comes to the rights of the nation's citizens."

But Bush has filled in that blank check, and the amount is staggering.

Take the mass detentions at Guantánamo, Iraq, and Afghanistan, and the secret prisons the CIA is running around the world. The Bush Administration has rounded up thousands of people and is holding them indefinitely, and without charges, and without access to any court anywhere. And indefinitely may mean forever. According to James Risen’s State of War, the Bush Administration has no intention of ever releasing some of the detainees in CIA prisons. There they will languish, without ever being charged with a crime or provided a hearing. This is a blatant violation of international law.

The third major ground for impeachment is the torture scandal. George W. Bush, Dick Cheney, Donald Rumsfeld, and Alberto Gonzales have repeatedly violated international treaties, U.S. statutes against torture and war crimes, and the Eighth Amendment by countenancing torture at Guantánamo, in Iraq, at Bagram air base in Afghanistan, in CIA prisons, and by other governments at the behest of the CIA.

At Guantánamo, prisoners have been beaten, they’ve had lit cigarettes put out in their ears, they’ve had to endure false executions and sensory deprivation. And when some of them went on hunger strike to protest their treatment, they were forced into restraint chairs where guards shoved feeding tubes repeatedly into their noses until they bled, and they were then confined in those restraint chairs until they defecated and urinated on themselves.

In Iraq, we all saw the photos at Abu Ghraib. But the hooding, the shackling, the dangling of prisoners by their arms, and the sexual humiliations occurred not only at Abu Ghraib but in many other places in Iraq. That was standard operating procedure. So, for a time, was the use of unmuzzled dogs.

In Afghanistan, on top of all of these brutalities, detainees were kept naked and doused with freezing water.

U.S. personnel killed at least two detainees at Bagram, according to the Pentagon’s own investigation. And those two were not the only victims. This torture scandal is also a homicide scandal.

According to the Pentagon itself, there have been thirty-four cases of suspected or confirmed homicides of detainees by U.S. personnel. The lawyers’ group Human Rights First has identified another eleven where "the facts suggest death as a result of physical abuse or harsh conditions of detention."

That’s forty-five suspected or confirmed homicides of prisoners in U.S. custody at the hands of U.S. personnel.

If that doesn’t appall you, I don’t know what will.

Maybe the export of detainees for torture? Because the CIA’s been doing that, too. Nabbing people and flying them out to countries that are notorious for torture.

So what’s Bush’s responsibility for this?

He conveyed, by word and by deed, that the laws and treaties against torture need not be followed. As did his Vice President and his Secretary of Defense.

On the evening of September 11, Bush told his counterterrorism staff, according to Richard Clarke, that "any barriers in your way, they are gone." And he said: "I don’t care what the international lawyers say, we’re going to kick some ass." He also authorized the CIA to send detainees to third countries for torture. And he let George Tenet and the CIA know that the gloves are off, in the words of Cofer Black, who was head of the CIA’s counterterrorism center on 9/11.

Bush also notoriously exempted the Taliban and Al Qaeda from protections under the Geneva Conventions, and it’s not up to the President to decide who is and who is not covered by those conventions. Article 75, "Fundamental Guarantees," of the 1977 protocol to the Geneva Conventions, states: "Persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances." It prohibits, among other things, "torture of all kinds, whether physical or mental," and "outrages upon personal dignity, in particular humiliating and degrading treatment."

Cheney, from the start, has been the torturer’s advocate. After 9/11 he told Tim Russert on Meet the Press that "we also have to work, though, sort of the dark side." And more recently he lobbied Capitol Hill for the right to torture.

Rumsfeld is culpable, as well. He sent out a directive on December 2, 2002, instructing subordinates in interrogation techniques that breached the Geneva Conventions, including "using detainees’ individual phobias (such as use of dogs) to induce stress." Six weeks later he rescinded this memo, but according to The New Yorker he proceeded to approve many of the same techniques. Rumsfeld also has admitted to keeping an Iraqi detainee from the International Red Cross. The U.S. government has a policy of holding such "ghost detainees," a policy that Rumsfeld and Tenet approved.

And for two years, the Justice Department asserted, in an August 1, 2002, memo signed by Assistant Attorney General Jay Bybee that interrogation was legal that did not result in organ failure or death, and even then, the torturer could get off if he said he didn’t intend to cause such results.

This torture scandal has done much to tarnish the reputation of the United States abroad. But it also gets at the central question of whether here at home the President is above the law.

This question rises to its greatest heights in the NSA warrantless spying program. Here the law could not be clearer. The Foreign Intelligence Surveillance Act (FISA) explicitly states that the "exclusive means" for spying on U.S. citizens is by getting a warrant from the FISA court.

As a result, Bush has violated the rights of thousands of U.S. citizens. And Cheney has, too, since he served as the point man for this NSA program.

Bush, to this day, claims he doesn’t need to go to the FISA court to get warrants on U.S. citizens, and he insists that he’ll continue to bypass the law.

As John Dean of Watergate fame said, Bush is "the first President to admit to an impeachable offense."

Now a lot of people think even talking about impeachment is silly. They say it’s not going to happen. But few people thought Nixon would be impeached after he won reelection by a landslide in 1972.

And even though the mainstream media isn’t paying attention, people at the grassroots are in favor of impeachment. According to a Zogby poll, 53 percent of Americans would favor impeachment if it could be shown that Bush lied about the reasons for going to war. And 52 percent favor impeachment if it can be shown that Bush illegally spied on American citizens.

Both can readily be shown.

John Conyers, the Democratic Congressman from Detroit, has introduced a bill to explore grounds for impeachment. It now has twenty-seven co-sponsors.

As more revelations come out, especially on the illegal spying that Bush has been engaged in, the number of co sponsors will rise.

And as more and more of us press for impeachment from below, the number of co-sponsors will rise.

And if the Democrats gain control of the House in November, Conyers will become chair of the Judiciary Committee, whose job it is to draft bills of impeachment.

Some, especially on the right, may object that given the war on terrorism, this is no time to entertain the idea of impeachment.

Leaving aside the fact that Bush has waged an illegal and reckless war, our founders were clear that war should be no obstacle. As noted by the Center for Constitutional Rights, Edmund Randolph, governor of Virginia and delegate to the Constitutional Convention, said: "The Executive will have great opportunities of abusing his power; particularly in times of war when the military force, and in some respects the public money, will be in his hands."

Others, on the Democratic side, may prefer to settle scores at the ballot box this November or in 2008.

But this isn’t about partisanship. It’s about whether we respect the Constitution or not. It’s about what kind of system of government we’re going to have. If we let Bush get away unimpeached for all the offenses he has committed, then we send the signal that what he has done is OK.

And his encroachments and aggrandizements will linger in the Oval Office for some subsequent President to enjoy at the peril of our democracy.

"It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant," warns Bruce Fein, who served as an associate deputy attorney general in the Reagan Administration.

Bush has taken our country down a frightening path toward a form of government our founders loathed. And he has done so by cloaking his actions as wartime necessities.

The Supreme Court, back in 1866, warned of this current situation, as Lapham notes in a footnote. In Ex Parte Milligan, it said, "The Constitution of the United States is a law for rulers and people; equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."

Bush acts like a despot.

We can’t let him get away with it.

We can’t let him continue to disgrace the office of the Presidency, violate his oath of office, and trample on our Constitution.

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